The Employment Non-Discrimination Act (ENDA; H.R. 3017), which would prohibit employers from considering "sexual orientation" and "gender identity," is based on false premises and is wrong in principle. Those are reasons enough to oppose it, regardless of its practical consequences.

The false premises are that homosexuals are "born gay" and "transgender" people are "born in the wrong body." Pro-homosexual activists would have us believe that makes "sexual orientation" and "gender identity" immutable characteristics that are therefore worthy of civil rights protection, just like the immutable characteristic of race. However, the evidence does not support the theory that homosexuality is biologically determined,[1] while "transgender" people have a mental illness ("gender identity disorder") which can and should be treated using gender-affirming therapy, not self-mutilating surgery.[2]

The principle at stake is whether personal disapproval of these chosen and harmful behaviors (homosexual conduct and sex changes) should be officially stigmatized under law as a form of bigotry that is equivalent to racism. Since such disapproval is the dominant viewpoint in the American public,[3] explicitly taught by leading religions,[4] and empirically supported by the negative health consequences of those behaviors,[5] it would simply be wrong to grant special legal protection for such behaviors.

Nevertheless, it is not unreasonable to go beyond these core principles and ask what the practical consequences of enacting such a law would be. On the one hand, would it cause any tangible improvement in the lives of homosexuals? On the other hand, would it cause any tangible harm to those who might be charged with violating it? One way to find out is to look at what the consequences of similar laws have been in states and localities that have adopted them.

The evidence would suggest that for the most part, non-discrimination laws based on sexual orientation are a solution in search of a problem. Few secular employers will simply refuse to hire homosexuals-in part because it is not a visible characteristic and in part because it is not relevant to the duties of many secular jobs. For example, a review of the consequences of a sexual orientation non-discrimination law in the state of Oregon found that only 62 complaints were filed in the first 18 months that the law was in effect-a number that represented only two percent (or "a small sliver," as the newspaper The Oregonian put it) of all discrimination charges brought in all categories.[6] Advocates of such laws may argue this means the laws are effective at deterring such "discrimination," but an alternative explanation is that not much of it takes place to begin with.

The Oregonian, in the same report which described the "small sliver" of cases brought under Oregon's non-discrimination law, told of two specific cases that had been filed. One employee who sued had, according to his employer, actually been fired for "cheating on an exam" and "repeatedly showing up late for work." Another charged discrimination for his "perceived" orientation-even though he was a straight male, he had been criticized for wearing earrings. At the time of the article, these were the only cases that the state had found "substantial."[7]

For the most part, it is difficult to document cases in which discrimination charges have been brought against a private employer, simply because so few such cases are resolved by public proceedings or trial. Instead, they often result in an out-of-court settlement whose terms are not publicly disclosed. Sometimes, employers may settle in order to put the issue behind them, even if they believe there is no merit to the allegations.

However, an additional concern is the impact of ENDA on public employers. The bill's attempt to dictate not only to private employers but to states and local governments as well (in circumvention of the Constitution's guarantee of state sovereignty) is one of several serious concerns about this bill.

For example, in 2004, the City Council of Portland, Oregon approved a $150,000 payoff to a lesbian former housing supervisor, Loraine Fischer, who had alleged "discrimination and a hostile work environment." The settlement came despite the fact that Fischer had twice before been suspended after female co-workers had filed formal complaints of harassment and unwanted sexual advances against her.[8]

In 2005, a lesbian former deputy police chief, Penny Phelps, sued the city of Bay City, Michigan seeking compensation for "financial loss, mental anguish, humiliation, fright, shock and lifestyle disruption." She had previously been in a "dating relationship" with a female officer, Elizabeth Kangas. After the relationship ended, Kangas filed a complaint accusing Phelps of stalking, harassment and assault.[9] Her lawsuit against Phelps, the police department, and the city was settled out of court in 2003 for $225,000. Phelps resigned from the department, but three years later decided to sue for "harassment" and a "hostile work environment." In 2006, Phelps' lesbian partner Diane Lipinski also filed suit. Phelps eventually settled for $170,000 (plus an increased pension contribution), which was less than the woman who accused her of stalking received.[10]

In 2007, a homosexual police sergeant in Pacific Grove, California, Darren Smolinski, sued alleging "discrimination" based on his "sexual orientation." However, he had never claimed that he was harassed for being homosexual. Instead, he argued that he was targeted because he testified on behalf of a fellow officer, Rhonda Ramey, who complained that she was inadequately protected from harassment for being bisexual. Ramey, however, was fired for stealing cars that had been towed from city streets. When Ramey sued charging "retaliation," she lost in a jury trial, and she ended up paying a civil judgment to settle the auto theft case.[11]

In New York in 2007, a lesbian prison guard was awarded $850,000 by the New York Human Rights Commissioner after complaining about another officer's language and conduct.[12] A year later the award was slashed to $200,000 by a court, which noted that although the guard claimed to have suffered "physical, mental and emotional ailments," she had taken no leave, was prescribed no medicine, and attended only four counseling sessions.[13]

In another California case, the Santa Barbara Independent reported the outcome concisely:

The City Council voted behind closed doors to settle a long-simmering legal dispute with gay ex-cop Ruben Lino for almost $1 million and a positive job reference, rather than appeal the awards already granted to both Lino and his attorney Janean Acevedo Daniels. A jury awarded Lino $451,000, saying he'd been the victim of retaliation - though not discrimination, as Lino also charged - after he complained to Chief Cam Sanchez about anti-gay remarks made by fellow officers. Daniels was awarded $660,000 in attorney's fees. Around City Hall, Lino's victory was widely regarded as the result of a weak-minded jury, and City Attorney Steve Wiley argued City Hall stood a good chance of prevailing upon appeal. Apparently, enough councilmembers felt otherwise, or Wiley changed his mind.[14]

Like the Smolinski case above, Lino's complaint began with a charge of retaliation after he testified in support of another employee who sued the city (unsuccessfully) for discrimination.[15]

What can we conclude about the consequences of "sexual orientation non-discrimination" laws, from looking at these cases that have been reported in the media? First, such cases can be very costly to employers-including to public employers, who must pay these settlements with taxpayer dollars. But they can be very lucrative for lawyers. In several of the cases, large settlements were paid despite evident weaknesses in the cases brought. Two of the homosexual plaintiffs had actually themselves been credibly accused of sexual harassment by co-workers-yet still presented themselves as the aggrieved parties.

Finally, although supporters of ENDA's companion bill to outlaw "hate crimes" insist that it will not apply to speech, the same is not true of ENDA. Under ENDA and other "non-discrimination" laws, charges can be and often are brought in part or in whole because of the speech of co-workers (labeled as "harassment," "homophobic speech," or a "hostile work environment"), rather than because of actual personnel actions of the employers.

This focus on speech strongly suggests the danger of a slippery slope. If ENDA were to pass, private employers that have not already done so could be expected to add "sexual orientation" and "gender identity" to their own, internal "non-discrimination" codes. This, in turn, could lead to a crackdown not only on speech that is truly harassing, but on any expressions of concern about the wisdom of homosexual conduct or of "changing" one's gender. Such policies have already led to unfair personnel actions, including the firing of personnel for statements made on their own time and in a private capacity.[16]

The indirect consequences of ENDA in placing us on such a path are a very real concern. But even in its immediate effects, ENDA would invite employees to take an ordinary workplace conflict, in some cases with plenty of blame to go around, and turn it, literally, into a federal case. ENDA would make our society more litigious and make both consumer goods and public services more costly.

I urge you to oppose H.R. 3017.

[1] Even the American Psychological Association, whose policy statements strongly support the acceptance of homosexuality, has taken a neutral stance on its origins, declaring, "There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors." American Psychological Association, "Answers to Your Questions For a Better Understanding of Sexual Orientation & Homosexuality;" online at: http://www.apa.org/topics/sorientation.html. Accessed September 28, 2009.

[3] The National Opinion Research Center in 2006 found that 56% of Americans consider "sexual relations between two adults of the same sex" to be "always wrong," while 32% consider it "not wrong." See "Attitudes about Homosexuality & Gay Marriage," AEI Studies in Public Opinion, compiled by Karlyn Bowman and Adam Foster (American Enterprise Institute, June 8, 2008), p. 2. Online at: http://www.aei.org/docLib/20080603-Homosexuality.pdf